JURIST - Paper Chase: Saturday, December 6, 2008

[JURIST] The American Civil Liberties Union (ACLU) [advocacy website] sought to prohibit government censorship of prisoners' testimony about alleged torture and abuse at Guantanamo Bay [JURIST news archive] in a motion [text, PDF] filed Friday in military commission proceedings against five "high value detainees" [JURIST news archive] accused of involvement in the 9/11 attacks [JURIST news archive]. The motion says observers at the proceedings watch on a closed-circuit video monitor with a 20-second delay, allowing officials to cut the feed when it appears a defendant is discussing the conditions of their detention. In the motion, the ACLU requests that:

(1) in all future proceedings, the government not be permitted to exclude trial observers from hearing those portions of proceedings in which the defendants relate their allegations of abuse in U.S. custody; and (2) with respect to all prior proceedings, this Military Commission order the release of unredacted transcripts that include those portions in which the audio was turned off.

"There is absolutely no justification for the suppression of detainees' allegations of torture and abuse," said [press release] Ben Wizner, staff attorney with the ACLU National Security Project.

In October, a judge for the US District Court for the District of Columbia granted summary judgment [JURIST report] for the Department of Defense, holding that unredacted transcripts allegedly containing evidence of torture used against the high-value detainees held at Guantanamo Bay could be withheld from the ACLU. Aides to President-elect Barack Obama have said the incoming president will likely not prosecute [JURIST report] Americans who approved or actually carried out the torture or other harsh interrogation of terrorism suspects.

[JURIST] The Kenyan government on Friday published a bill calling for a constitutional amendment allowing the replacement of the controversial Electoral Commission of Kenya [official website] which oversaw the re-election of President Mwai Kibaki [official profile] in December 2007, leading to massive demonstrations and more than 1,000 deaths. Justice Minister Martha Karua said the country's parliament could pass the bill within a week [AFP report], laying the groundwork for an interim body of five people to replace the current 22-member commission. The commission has called the claim unconstitutional [Afrik.com report] and is seeking a court order to block such a change. Some 600 employees of the commission who stand to lose their jobs are protesting [Standard report] the move, blaming the 22 commissioners and other higher-ranking officials for problems in the agency.

Kenyan protesters alleged fraud and vote-rigging [JURIST report] after Kibaki prevailed despite polls that placed rival candidate Raila Odinga in the lead. In March, Kibaki established a panel [JURIST report] to investigate the violence that followed the election. Human Rights Watch concluded the violence was planned carefully [JURIST report] by leaders on both sides. That commission urged the creation [JURIST report] of an international tribunal to try suspected perpetrators of the violence.

[JURIST] Russian President Dmitry Medvedev [BBC profile; JURIST news archive] Friday signed into law legislation authorizing the creation of a DNA database for convicted criminals, according to reports. Under the law, passed by the State Duma [Kommersant report] on November 19 and approved by the Council of Federation on November 26, authorities are allowed to collect and retain DNA [AP report] from prisoners convicted of serious violent crimes, including murder and rape. The new legislation is expected to draw opposition from rights groups and advocates, who claim that the database is an invasion of privacy.

A number of other countries have instituted similar criminal DNA databases. In April, the US Department of Justice announced that it would begin collecting DNA samples [JURIST report] from every person arrested under federal laws. The UK National DNA Database [Home Office backgrounder] collects and retains DNA information from criminal suspects upon their arrest. The European Court of Human Rights unanimously ruled Thursday that the British practice of keeping the fingerprints and DNA profiles of people arrested but not convicted of crimes was against privacy rights [JURIST report] and should not continue. In 2005, the government of Sweden proposed a law [JURIST report] that would establish a program similar to the UK scheme, authorizing the collection of DNA from criminal suspects, but under the Swedish scheme samples are destroyed upon acquittal.

[JURIST] The US Department of Justice (DOJ) [official website] has indicted five Blackwater USA [corporate website; JURIST news archive] guards involved in the September 2007 killings of 17 Iraqi civilians [JURIST report], according to reports. The Associated Press reported that sealed indictments [AP report] were issued Thursday, and will remain sealed until at least Monday. While the indictments had been expected to contain charges under the Military Extraterritorial Jurisdiction Act (MEJA) [text], the New York Times says the five indicted Blackwater guards will be charged [NYT report] under the Anti-Drug Abuse Act of 1988 [LOC backgrounder], which requires a minimum 30-year sentence for the use of a machine gun in connection with a crime. If the guards are indicted under the MEJA, it would mark the first time that State Department contractors were prosecuted under the law, which allows criminal charges to be filed against contractors working for the Department of Defense.

The Blackwater incident caused domestic outrage in Iraq and has prompted legal controversy in the US. In November, the New York Times and the Washington Post [reports] reported that an Federal Bureau of Investigation (FBI) investigation into the incident concluded that the shootings were unjustified [JURIST report], and last month Bush administration officials announced that Iraq security contractors would be losing immunity from Iraqi law under the recently approved [JURIST reports] US Status of Forces Agreement (SOFA) with Iraq. Human Rights First [advocacy website] issued a report [text, PDF] in January asserting that existing federal law is sufficient to prosecute private contractors using excessive violence in their overseas capacities, and that the US government is to blame for failing to "develop a clear policy with respect to the accountability of private contractors for crimes in Iraq and Afghanistan." The report says that the MEJA could be extended to State Department contractors, but that the US has failed to do so.

[JURIST] The US Court of Appeals for the Third Circuit [official website] on Friday ruled [opinion, PDF; ACLU press release] that an Egyptian Christian who could face torture in Egypt [JURIST news archive] may challenge his deportation from the United States. Sameh Khouzam [ACLU materials; JURIST news archive] fled to the US in 1998 allegedly to escape religious persecution. American Civil Liberties Union (ACLU) [advocacy website] lawyers representing Khouzam argued [JURIST report] before the US District Court for the Middle District of Pennsylvania [official website] that the US government was not abiding by its obligations under the UN Convention Against Torture [text] by relying on assurances from the Egyptian government that Khouzam would not be tortured if he were returned to authorities in Egypt [JURIST news archive]. In upholding the district court's decision [opinion, PDF; JURIST report] to block Khouzam's deportation, Judge Marjorie Rendell wrote:

The alien must have an opportunity to present, before a neutral and impartial decisionmaker, evidence and arguments challenging the reliability of diplomatic assurances proffered by the Government, and the Government’s compliance with the relevant regulations. The alien must also be afforded an individualized determination of the matter based on a record disclosed to the alien.

The court held that the district court had no jurisdiction over Khouzam’s petition for a writ of habeas corpus, and vacated the order granting that petition. The court also held that they had jurisdiction over Khouzam’s petition for review, and that Khouzam was denied due process. They granted his petition for review, and vacated the termination of his deferral of removal.

Khouzam originally came to the US seeking asylum, but was detained by US authorities based on claims by Egyptian authorities that he was a murder suspect in his home country. Khouzam's case marks the first time a US court has addressed whether the government can lawfully rely on assurances from foreign governments to deport detainees to countries with a record of engaging in torture. Friday's decision could have important ramifications in the upcoming case of Arar v. Ashcroft [CCR backgrounder] that will be argued before an en banc sitting of the US Court of Appeals for the Second Circuit [official website] next week. In that case, Canadian citizen Maher Arar [advocacy website; JURIST news archive] is seeking a declaratory judgment against US government officials for deporting him to Syria [JURIST news archive], where he was tortured despite Syrian assurances [Globe & Mail report]. In April this year the Court of Appeal in London blocked two separate orders [JURIST report] to extradite two terror suspects to Libya and another convicted terrorist to Jordan, citing concerns that they would face torture and be denied a fair trial on arrival despite the fact that the UK had signed agreements with both countries under which they had guaranteed that deportees would not face abuse on their return. The court ruled that those agreements, much maligned by rights groups [JURIST report], were insufficient.